Ethical Breaches From Little Favors Grow

I taught a class on lawyers' ethics for a friend of mine at the University of Connecticut Law School the other day. It took a few hours to prepare and an hour and a half to deliver the class. When I finished, my friend noted that now that I was no longer employed by the state, he could buy me a cup of coffee to return the favor. We both laughed, and agreed that he would owe me.

I was thinking of this when I read the most recent of John Lender's articles in The Courant about state employees' children getting $12-an-hour summer jobs with various state agencies and departments. Though there was no rule against this, and it was pretty hard to imagine any corruption in the process, the story left me with a nagging sense that something was wrong.

Maybe it was just my over-sensitive antennae, having worked for more than seven years in the Judicial Branch where a strict, zero-dollar, "no cookies" policy forbid employees from taking or giving anything of value from or to anyone doing business with the branch, including lawyers and the members of their families. Granted, as the chief enforcer of lawyer ethics, I had to be very strict, but as I weighed the policy, it made a lot of sense.

Consider my late father, who supplemented his Social Security income by delivering sandwiches to doctors' offices for drug companies. I asked him how likely he thought it was that a doctor would prescribe one drug over another just because he and his staff had gotten a free lunch from a drug representative. He replied that it must work because he was delivering a lot of sandwiches. "These drug companies don't spend money without knowing that they get a return," he said.

At a national lawyers' ethics symposium a few years ago, some sociologists and psychologists were discussing research into this very issue. Would small favors likely influence individuals to make choices among equally viable courses of conduct? Although the professionals being studied (doctors) uniformly reacted negatively to such a suggestion, insulted that anyone would think that their judgment might be influenced by trifling gratuities, it turns out that Dad might have been right.

Adding transparency to the process, i.e. disclosing the gratuities, did not help. Actually, it allowed some of those studied to avoid dealing with the troubling nature of their conduct as they felt that since the payments had been disclosed, the moral stain had been erased. Apparently, it is only a sin if it is done in secret. The term one of the speakers applied to this logic was "moral fading." Small, incremental, de minimus instances of immorality eroded the value system of those being studied in a way that larger choices would not. It is easy to reject a large payment (think a bribe), but who would think they could be influenced by a cup of coffee or a sandwich?

In reaction to the disclosure that something like one in 10 of the summer state employees are related to someone employed by the agency where they are working, there is a new policy prohibiting family members from sitting on hiring boards considering the employment of their children. Although this seems a rational and reasonable remedy, I don't think it solves the problem.

Yes, the amounts made by these young folks is small, and yes, it is unlikely that anyone would act differently because someone gave their kid a summer job, but the problem with small breaches of trust is that they numb us to larger ones. And just because something is not prohibited does not mean that it is right. Little favors can erode public trust just as quickly as big ones. Only more insidiously.

Mark Dubois of Haddam is an lawyer and president-elect of the Connecticut Bar Association.